Cross-examinination for Prosecutors: When You Can’t, and How You Can’t

Prosecutors often accuse defense attorneys, and our clients, of using unduly narrow interpretations of the law to justify conduct that hasn’t expressly been ruled illegal. Who among us hasn’t heard the government invoke some variation of “the absence of an explicit prohibition doesn’t bar a prosecution”? In other words, says the government, “it’s not okay just because no one told you it isn’t.”

The Third Circuit turned that argument around on the government recently, in United States v. Moreno, ___ F.3d ___, 2016 WL 53796 (3d Cir. Jan. 5, 2016). A prosecutor in the Western District of Pennsylvania had a bright new idea: use the defendant’s sentencing allocution as an opportunity to cross-examine him about the offense conduct – an opportunity that the prosecutor hadn’t gotten at trial, when the defendant chose not to testify. The innovative prosecutor succeeded in eliciting incriminating admissions, upon which the sentencing judge promptly and expressly relied when imposing sentence. Although the defendant had appropriately cabined his allocution to mitigation and remorse, defense counsel did not object to the cross-examination or the judge’s reliance upon it.

On appeal, the government sought refuge in the fact that neither a rule nor binding precedent explicitly says “no, prosecutors, you cannot cross-examine a defendant at allocution.” The government relied on this “but no one said I couldn’t” analysis to argue both that no error had occurred, and that any error was not “plain” (as required for reversal, with no objection below).

The circuit disagreed. It pointed out that the purpose of the “ancient” right of allocution, enshrined in Fed. R. Crim. P. 32, is to “permit the defendant to speak or present any information to mitigate the sentence” – a purpose that is fatally undermined if allocution opens a defendant to cross-examination. Permitting cross-examination was not only error, but plain error. (The circuit noted that a defendant who chooses to testify about offense conduct at sentencing may do so, but only by taking the stand and thus accepting the risks of cross-examination. Practice tip: discourage your clients from doing this.)

And the circuit went one step further toward reminding the government that “no one said I couldn’t” is not the limit of its obligations. Even if the district court’s error were not plain, the circuit said, it would exercise its supervisory authority to prohibit cross-examination at allocution.

The prosecutor in Moreno had tried another unorthodox tactic that the circuit also disapproved: rehabilitating a witness not with his own statements, but with the statements of a non-testifying witness. The defense had attacked the testimony of a key cooperating witness in the usual way: by eliciting an admission that the witness hoped for leniency at sentencing as a reward for his cooperation. On re-direct examination the government attempted to offer “prior consistent statements” of the witness, citing Fed. R. Evid. 801(d)(1)(B) – but the statements were memoranda prepared by the non-testifying special agent from the pretrial interviews of the testifying witness, and not the witness’s own statements. The district court admitted the memoranda over a non-specific objection by defense counsel.

On appeal the circuit agreed with the defense that the admission of the non-testifying agent’s statements violated the Confrontation Clause. Unfortunately for Mr. Moreno, “no harm no foul” carried the day; the circuit found the error harmless. It remanded for resentencing as a result of the allocution violation (rejecting another sentencing issue, related to the number of victims), but not for a new trial.